The previous blog post in this series had presented some insights from our review of case law relating to financial products and services. This blog post will consider one of the questions raised at the end of the previous blog post: are the courts—and indeed the Law more generally—already discussing what constitutes “suitable”advice and conduct on the part of financial institutions?

Suppose you invest in a market-linked insurance product without understanding how it works, whose fault is it if you lose your investment when the product matures?

If your insurance policy lapses during its term, but you don’t realise – should your insurer tell you?

If your bank miscalculates loan EMI payments or fails to debit loan repayments from your account, when should your bank inform you about this?

These are some of the questions that legal disputes are bringing to the courts, the answer to which often hinges on what constitutes “appropriate” or “suitable” conduct by financial service providers (FSPs).

Moving past caveat emptor

The logic of caveat emptor or “buyer beware” – that the buyer alone is responsible for checking the quality and suitability of goods before a purchase is made[1]— has traditionally been applied to the sale of financial products, just as it does to most retail goods and services. A classic example is seen in Surinder Kumar Singal vs. Aviva Life Insurance Co. India Pvt. Ltd.[2], where a complainant alleged that he was incorrectly informed of the terms of a life insurance policy. The state consumer forum held that although certain terms of an insurance policy were not mentioned in the insurance proposal form, since the complainant had received all the policy documents and a “Right to Consider” notice (allowing a cancellation of the policy within 15 days of receipt of Policy documents) the terms of the insurance were binding.

However, the “caveat emptor” approach is no longer typical or standard for disputes relating to financial products. Courts are beginning to interpret the law with more nuance, taking into account the type of customer and financial product involved in a dispute. This is the case especially where more vulnerable customers are involved. In one case filed at the Punjab State Consumer Forum, a market-linked pension policy had been sold to two illiterate customers without a clear explanation of how the product worked.[3] The illiterate policy holders were not aware of the product being market-linked, and there was no record of policy documents being despatched to them (indeed, the value of such documents to illiterate customers is debatable). The agents and the bank were held jointly and severally liable for the loss and that there had been a deficiency in service and unfair trade practice under the Consumer Protection Act.

Similarly, the High Court of Allahabad took a wider view of requisite FSP conduct when selling financial products in a case which questioned the validity of Unit Linked Insurance Plans (ULIPs) issued by a public sector bank.[4] In the case, the complainant invested Rs. 50,000 in a ULIP but on the maturity of the product was repaid only Rs. 248. He argued that the proposal form was couched in terms that did not disclose the dangers and consequences of picking the higher risk profile, and that the high “mortality charges” payable by senior citizens was not explained to him. The petitioner also argued that the ULIP was in breach of IRDA requirements on providing material information to the prospect on the insurance cover that would be in his best interest. Unilateral amendments to policy terms had also been carried out following discussions with IRDA about the policy. The insurer argued that the petitioner had been given all the policy documents and therefore could not allege a lack of knowledge of the risk profile and the minimum basic sum assured.

The Court held that Insurer (as public sector entity, considered to be the state for the purposes of the case) had a duty to act fairly and equitably, and that (i) the failure by the insurer to explain the additional mortality charges to the petitioner was in violation of IRDA guidelines (ii) the unilateral change of a term of the policy (which promised that if the value of the investment fell below Rs 10,000 the ULIP would be terminated) was wrongful and could not be done without the policyholder’s written consent (iii) this particular ULIP was an “an unconscionable contract and was thus arbitrary, illegal and void document” and it did not bind the Petitioner. The order has currently been stayed by the Supreme Court but is indicative of the courts actively reviewing the quality of advice given by financial institutions to their clients in the context of standard retail financial products.

Spelling out appropriate behaviour

In other cases, courts have spelt out what they consider to be appropriate conduct in relation to particular products. For e.g. where the insurer alleged that an insurance policy had lapsed due to a disruption in payment but went on to accept premiums, the Court held that the insurer should not have accepted further premiums and should have intimated the policyholder of the alleged lapse immediately upon its occurrence.[5]

In Karishma Raj Vs. State Bank of India[6], an educational loan of Rs. 4 lakhs had been granted by SBI to the appellant for studies in the UK. Only Rs. 2.08 lakhs were availed. Following this, despite sufficient funds and a standing order in the appellant’s account to repay the EMI, the bank stopped debiting monthly amounts from the account for nearly 2 years. It then declared the appellants as defaulters. The EMI for the loan was also wrongly calculated on the entire loan amount when only Rs. 2.08 lakhs had been drawn down. The Court held that the bank had not re-scheduled EMIs correctly; had failed to reply to the appellant-borrower’s letters in contravention of RBI Guidelines for Nationalised Banks (that responses are to be provided within 8 weeks); and that the litigation proceedings had an adverse effect on the appellant’s job and family’s health through the distress caused. Damages and costs were awarded to the appellant.

The court has also apportioned liabilities from a lapsed insurance policy between the insurer and insured, where both contributed to the consequent loss. In Unit Trust of India and Ors. Vs. The Consumer Rights Society (Regd.) and Ors.[7], one premium payment during the course of a 15-year ULIP was not made due to the policy holder’s cheque being dishonoured. The policy terms clearly stated that failure to pay would result in withdrawal of the insurance cover, but the premiums continued to be paid and accepted for the years following the lapse. Here, the NCDRC held that there were lapses by the Insurer (for not returning the dishonoured cheque to the complainant as it should have) as well as the Insured party (for not following up a notice for a later premium which noted the previous year’s premium in arrest, or the lack of debits from his account). It was held that there could not be a revival of a lapsed insurance policy, but the failure of the Insurer in not actively informing the policy holder or returning the bounced cheque to him would require the payment of some compensation to the complainant.

Moving from a patch-work to a consistency ex-ante standard

As demonstrated in the cases noted above, courts are already making case-by-case determinations of appropriate conduct by FSPs in particular situations. In the longer term however, continuing with this patchwork approach can raise concerns about inconsistency and uncertainty for customers and FSPs.

A proper ex-ante understanding of the expected conduct of FSPs could reduce any potential inconsistencies. Indeed, several regulations and draft laws are seeking to do this.

The RBI’s Charter of Rights requires appropriate products to be provided to customers based on an assessment of their financial circumstances and understanding.[8] For derivative products, the RBI through its Comprehensive Guidelines on Derivatives has mandated that such products should only be offered to those “who understand the nature of the risks inherent in these transactions and further that the products being offered are consistent with users’ business, financial operations, skill & sophistication, internal policies as well as risk appetite”[9].

The SEBI has meanwhile introduced requirements for FSPs providing specific services to ensure suitability of conduct. Regulation 17 (Suitability) of the SEBI (Investment Advisers) Regulations 2013 requires Investment Advisers to consider various factors including the risk profile of the client and the client’s objectives before offering paid investment advice. The SEBI Master Circular for Mutual Funds contains several references to the suitability and appropriateness of products. It requires distributors of Mutual Fund products to ensure that the principle of appropriateness is followed when providing any advisory services. Where non-advisory execution services are being offered, if the distributor believes that a transaction is unsuitable for a customer they are bound to communicate this in writing to the customer.

The Insurance regulator, the IRDA, has introduced at least three pieces of draft regulation aimed at ensuring that only suitable products are offered to customers and that insurers act appropriately when selling insurance. The IRDA’s (Draft) Guidelines on Development and Implementation of Prospect Product Matrix by Life Insurance Companies 2012 are specifically aimed at ensuring that the sale of life insurance policies would be based on suitability or needs of the prospect (or client).[10] Its (Draft) IRDA (Standard Proposal Form for Life Insurance) Regulations, 2013 required a determination of suitability to be made in all direct sales of insurance prior to the making of a recommendation by an insurer, agent or broker.[11] Finally, the modified IRDA (Protection of Policyholders’ Interests) Regulations, 2014 (modifying the previous IRDA (Protection of Policyholders’ Interests Regulation of 2002)), in Regulation 3.1(6), provides prospects and policyholders with the right to receive suitable advice at the point of sale and during the subsistence of the insurance contract.[12]

Over-arching “suitability” requirements are also being contemplated for FSPs as part of the draft IFC which will mandate that retail advisors must obtain relevant information about the customer and then provide “suitable advice” to any retail customer.[13]

The draft IFC could therefore set a universal “suitability” benchmark for all FSPs facing retail customers, to ensure that they act appropriately when interfacing with customers. As some of the cases noted above show however, as we seek to achieve a coherent policy and regulatory direction to clarify the ex-ante standard of suitability for FSPs, courts are already moving the law in this direction through their decisions.